The Role of Three-Judge Courts in Conservative Attacks on Campaign Finance Reform and Voting Rights

David Gans

Election law cases have come to the Supreme Court in droves
in recent years, as conservative activists have taken advantage of federal laws
that provide for a direct appeal to the Supreme Court in certain campaign
finance and voting rights cases heard by three-judge district courts.What is similar about Citizens United v. FEC, McCutcheon
v. FEC, NAMUDNO v. Holder, and Evenwel v. Abbott?In each one of these cases, the Justices
agreed to hear a direct appeal from a three-judge district court.Three-judge districts courts (composed of two
district court judges and one court of appeals judge) are a rarity in federal
law, but play a very significant role in campaign finance and voting rights
law.Congress has provided for
three-judge courts in constitutional challenges to Bipartisan Campaign Reform
Act, certain suits brought under the Voting Right Act, and in constitutional
challenges to state redistricting.A
litigant does not have an automatic right to a three-judge court, and various
considerations go into the decision to convene a three-judge court, but once
convened, a case gets special treatment. Most important, appeals from
three-judge courts go straight to the Supreme Court. In the hands of conservative activists,
immediate appeal to the Supreme Court has been a potent weapon for deregulating
campaign finance law and gutting the Voting Rights Act.Since John Roberts became Chief Justice
nearly ten years ago, almost every Term has featured a major election law case coming
by direct appeal.And more are on their
way.

That’s why it is significant that the Supreme Court this
week agreed to hear Shapiro v. Mack,
a case concerning the circumstances in which a single federal district court
judge may refuse to convene a three-judge court.In Shapiro,
a constitutional challenge to congressional districting by the State of
Maryland, the plaintiffs argued that the state’s congressional districts were
so badly gerrymandered that they violated the Constitution.The district court disagreed, finding that the
case did not warrant a three-judge court.Next Term, the Justices will decide whether the case should have been
heard by three judges instead of one.While
Shapiro raises only a narrow question
of procedure under the Three-Judge Court Act, the consequences are
significant.

Cases decided by a single federal district court judge,
which make up the vast majority of federal cases, go through a lengthier
judicial process if appealed, including review by the federal court of appeals,
and are very rarely accepted for Supreme Court review.Appeal to the Supreme Court is discretionary,
and notoriously difficult to obtain.Moreover,
the Supreme Court has complete control over its certiorari (discretionary) docket,
and can refuse to hear a case for any reason without setting any judicial
precedent for the future.But three-judge court cases are radically
different, as the Supreme Court is required
to act on a direct appeal from the decision of a three-judge court.When such an appeal is filed, the Justices
have three options—either to summarily affirm, to dismiss the appeal for want
of a substantial federal question, or to accept the case for full review.Unlike a denial of a petition for a writ of
certiorari, each of these actions sets a precedent for the future.Because the Justices are often wary of
setting a precedent without full briefing, direct appeals from three-judge
courts quite often receive full review on the merits.

When Earl Warren was Chief Justice, direct appeals from
three-judge courts were available in a broad range of constitutional challenges
to state laws (that part of federal law has since been repealed), and they
helped ensure that civil rights cases reached the Justices quickly.Indeed, the NAACP, under the leadership of
Thurgood Marshall, and other civil rights litigators time and again appealed
directly to the Supreme Court to help topple Jim Crow and to establish the one
person, one vote principle.Today, it is
conservatives who are using direct appeals to get blockbuster cases to the
Supreme Court.

The Evenwel case
recently accepted for review by the Justices is a perfect example.For more than a decade, conservative
activists have been pushing the argument that the one person, one vote rule
requires states to draw districts that contain equal numbers of voters, and that
it is unconstitutional for states to count the total population, including
non-citizens and children, even though that is what is required by the
Constitution when a state is drawing congressional districts.Every court to consider the question has rejected
that argument, and the Supreme Court on a number of occasions has denied
review, most likely because there was no conflict in the lower courts.Even as late as 2013, the Roberts Court
refused to review a case similar to Evenwel,
with no noted dissents from that denial of review.But now, with the question packaged in a
direct appeal from a three-judge court, the Justices have agreed to decide it, unwilling
to simply affirm the lower court judgment without additional briefing,
analysis, or argument.

Not surprisingly, there is often heated debate over whether
a three-judge court is appropriate.When
Shelby County v. Holder was filed,
the plaintiffs requested that it be heard by a three-judge court.The district judge in the case, however,
determined that it should be heard by him alone.In that instance, it turned out not to
matter.The Supreme Court agreed to
review Shelby County despite the
absence of a circuit split, producing a landmark ruling gutting a key part of
the Voting Rights Act and striking a blow against the power of Congress to
protect the right to vote free from racial discrimination.Shelby
County is the exception that proves the rule.Virtually all the big Roberts Court cases that
have changed the ground rules for our democracy have been direct appeals from
three-judge courts.

What this reflects is a long term conservative strategy for
getting blockbuster campaign finance and voting rights cases to the Supreme
Court.It is a strategy that has paid
off time and again as John Roberts and his conservative colleagues have made it
easier for corporations and the wealthy to spend unlimited sums of money on
elections, and harder for Americans to vote in them.

David H. Gans is the Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.